By Tioko Ekiru Emmanuel
“Everyone has a right to peaceful coexistence, the basic personal freedoms, the alleviation of suffering, and the opportunity to lead a productive life” – Jimmy Carter, 39th US President “Who are our people? Where is their habitat? What, in human terms, does justice mean to them? How can law and its administration, through conventional court processes, fulfill the hunger for the common man for simple, quick justice, which assures him a fair share of the good things of life? By what means does the law in the books communicate with life in raw? Can the gap between lawyer’s law and the rule of life be bridged?” – V.R Krishna Iyer in ‘Judiciary: A Reform Agenda I &II’, the Hindu, 14-15 August 2002.Kenya’s struggle for a new Constitutional order finally saw a rebirth of the Nation on 27th August, 2010. The new order was expected to institute social change and radical reforms in all societal spheres. As President Mwai Kibaki aptly put it at the promulgation: (This moment marks) the decisive conclusion to the twenty-year journey in search of a new constitutional order. This new constitution is an embodiment of our best hopes, aspirations, ideals and values for a peaceful and more prosperous nation…It gives us renewed optimism about our country and its future. Some of us were present at the birth of the First Republic. As young leaders, we envisioned turning our newly-born country into a prosperous, healthy and developed nation in a generation or two. A lot has been achieved toward this goal, but much more work remains to be done. The Constitution gives our nation a historic opportunity to decisively conquer the challenges that face us today. It provides us an avenue to renew our fight against unemployment and poverty; and opportunity to work and become a developed people and nation. One remarkable thing about the promises of the new order is that it envisioned “a new Kenya’, where we would no longer have people living in absolute poverty, or facing unemployment, but one where food insecurity would be a thing of the past…where there would be better housing, healthcare and education for all. It came with the promise of citizens leading productive, dignified lives. Achieving the promises of the new constitution required the participation of all actors and the institutions it created. Most importantly, under the new order, the Judiciary has been given the prominent role of being the custodian of the Constitution. It has also been charged with protecting fundamental rights and freedoms. As Prof J. B. Ojwang correctly notes, “The Constitution cannot propel itself; as such, the Judiciary is assigned a central and special role as ‘the primary and ultimate arbiter, when operations of the several bodies run into conflict’. It is the dominant interpreter of the Constitution, and has power to ‘pronounce upon legality with a final voice.’ The High Court has also endorsed this view in the following terms, “The Judiciary acts as the repository and watchdog and is enjoined to enforce and defend the Constitution.” It should be appreciated that under the prevailing order, the High Court and Supreme Court have made commendable and robust contributions in committing the transformative project on the right path on matters that reflect the needs, values and aspirations of the citizens. On the other hand, the Court of Appeal has, at best, been patrolling around madly like a ‘night witch’ with the aim of reversing and sabotaging the hard won gains under the new constitution. The performance is poorest in the field of socio-economic rights adjudication and enforcement, where the only thing the Court of Appeal can boast of is “dead jurisprudence”. The judges of this Court are seemingly stuck to the old order where the establishment was king. As legal scholar Walter Khobe correctly posits: If there is a group of people whose ideology is contrary to the spirit, values and principles of the 2010 Constitution it is the judges of the Court of Appeal… if there is a group of people who are irredeemably mired in a legal culture of liberal legalism (formalism, positivism and rule-bound technical approach to adjudication) associated with pre-2010 dispensation and are oblivious to the demands of change in legal culture demanded by the 2010 Constitution, it is the judges of the Court of Appeal. They just don’t get it! A study of the infamous decision in Kenya Airports Authority v Mitu-Bell Welfare Society reinforces Khobe’s assertion. Therein, the Court of Appeal failed to appreciate the correct approach of interpreting the Constitution in the context of hierarchy of norms and the nature of crafting or forging new innovative remedies as provided therein. Retrospectively, Justice P.N. Bhagwati in the Judges Case wrote a compelling paragraph about remedies thus: What is necessary is to have judges who are prepared to fashion new tools, forge new methods, innovate new strategies and evolve a new jurisprudence, who are judicial statesmen with a social vision and creative faculty and who have, above all, a deep sense of commitment to the Constitution with an activist’s approach, and obligation for accountability, not to any party in power nor to the Opposition nor to the classes which are vociferous but to the half-hungry millions of Indians who are continually denied basic human rights. We need judges who are alive to the socio-economic realities of Indian life, who are anxious to wipe every tear from every eye, who have faith in the Constitutional values and who are ready to use law as an instrument for achieving the Constitutional objectives. This has to be the broad blueprint of the appointment project for the higher echelons of judicial service. The normative pursuits of the 2010 Constitution demand judges who share a passionate rejection of the old authoritarian order and its values. The supreme law is not apologetic to judges who are ready to nurture past human rights abuses and constant violations. This is because the new order was enacted within a particular social and historical context – one of material dispossession, social exclusion and unequal powers relations, which mirror the foundational status and traits of the old Kenya. Transnational dialogue South African judge Digkang Moseneke crafted a modern style of reasoning which should be embraced by all members of legal community while interpreting a transformative Constitution. He observes, “The Constitution has reconfigured the ways judges should do their work. It invites us into a new plane of jurisprudential creativity and self-reflection about legal method, analysis and reasoning consistent with its transformative role.” By all means, in an age of globalisation and with a polyjural legal system, the Court of Appeal and the Kenyan Judiciary in general, cannot afford to be left out of the ongoing transnational judicial dialogue. This dialogue must particularly involve jurisdictions like India, South Africa, Colombia and Canada. The evident attitude of the Court of Appeal – retrogressive culture in the adjudication and enforcement of socio-economic rights – casts it as one of the more serious threats of the post-authoritarian order envisaged in the 2010 Constitution. It is an arm of the justice system that must be liberated from the orthodox confines of common law, statute law or any other law that is not aligned with the promises of the new constitution. Socio-economic rights Unlike the Independence Constitution, the current constitution entrenches not only an expanded category of civil and political rights, but also includes a broad range of socio-economic rights. Chapter Four on the Bill of Rights assures the right to the highest attainable standard of health (which includes the right to healthcare services including reproductive health care); the right to accessible and adequate housing; the right to reasonable standards of sanitation; the right to freedom from hunger; the right to adequate food of acceptable quality, the right to clean and safe water in adequate quantities; the right to social security and the right to education. It also entrenches language and cultural rights. These provisions are indeed revolutionary and have the capacity to transform Kenya into a country that observes, protects, respects, fulfils and promotes the realisation, by a majority of its citizens, of socio-economic rights. Enforcement The entrenchment of justifiable economic and social rights in the Constitution gives the courts a prominent role in their realisation. The courts have a dual role here: as a forum where societal voices, especially those marginalised in the normal political processes, can articulate their needs and hold the Government to account for the realisation of those needs, as well as a facilitator of societal dialogue on the meaning, content, scope and the extent of the obligations arising from entrenched economic and social rights. Despite this clear role entrenched in Articles 22 and 23 of the Constitution, economic and social rights adjudication has, to a degree been constrained by traditional mind-sets that hold onto an ideological distinction between civil, political and economic and social rights, terming the latter rights as non-justiciable. The supposed non-justiciability of economic and social rights has been based on three interrelated and often overstated arguments: vagueness and the resource-dependant nature of economic and social rights; separation of powers concerns and the counter majoritarian character of judicial adjudication of economic and social rights; and the lack of judicial competence and capacity to adjudicate polycentric matters that require the balancing of competing social concerns, especially those that implicate policy and budgets. It has been argued elsewhere that socio-economic rights are not legitimate rights that can be enforced before domestic courts of law like civil and political rights. The often cited reasons are that they do not derive from the inherent nature of human beings (which is a definitive characteristic of human rights); they lack the essential characteristic of universality, which is an indispensable quality of human rights; that they lack the essential quality of absolutism which is a characteristic of all rights to the extent that their realization is resource-dependent; and finally, that they are vague. Opponents of socio-economic rights underscore the fact that the adjudication of socio-economic rights disputes involves allocation of resources and prioritisation of needs, which should be left to the democratically elected representatives of the people. It is said that resources are scarce and interests protected by civil and political rights as well as social rights are legion and are likely to conflict. Importantly, the resolution of socio-economic rights disputes involve making decisions that have polycentric repercussions. Lon Fuller argues that there are limits to adjudication which, according to him, should not be permitted if it leads to the making of adverse decisions with have far-reaching implications beyond the parties to the suit. Moreover, they also argue that adjudication of socioeconomic rights disputes before domestic courts lead to the making of decisions that have unforeseen and wide repercussions, and which affect a multitude of people who may not be aware of the existence of the dispute, let alone the resultant decision. In my opinion, however, these arguments not only lack merit, they also equally apply to civil and political rights. To strengthen the enforceability of socio-economic rights in domestic courts – and shield them against the aforesaid arguments against their justiciability – many countries that have constitutionalised socio-economic rights have attempted to expressly include a provision within the Constitution itself which declares and affirms their justiciability. The Constitution of Kenya, 2010 adopted a similar route. Article 19(1) of the Constitution expressly states that the Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies. Article 20(3) (b) provides that in applying the Bill of Rights, a court shall adopt an interpretation that favours the enforcement of a right or fundamental freedom. These provisions are intended to strengthen the justiciability of socio-economic rights in Kenya. What is more painful is that although the new constitution has fundamentally changed the legal, political and constitutional order, the ghosts of the past dark era continue to torment human rights litigation. For starters, most judges who served in the old dispensation still serve as judges in the reformed judiciary. Some have even been promoted to the Supreme Court. Secondly, the human rights-hostile jurisprudence that was developed by the Kenyan courts under the old order still retains probative value. Lastly, there is no shared socio-economic rights philosophy that can inform the development of consistent jurisprudence with regard to the enforcement of socio-economic rights in Kenyan courts. Interpreting the Bill of Rights within the framework of the Supreme Law demands that courts walk within the tight rope of Article 24, which acts as a “disciplinary tribunal” and final signpost with regards constitutional interpretation in the realm of rights. Articles 10 and 19 of the Constitution demand that policy makers must comply with the demands of the Constitution and Bill of Rights. Further, Articles 20(4), 159 and 259 of the Constitution offer the right approach for the courts when balancing the tension of the rights to housing and to rights. It has often been opined that fundamental rights are not capable of meaningful enjoyment if not accompanied by substantive fulfilment of socio-economic rights. This is another way of saying transformative adjudication must be put in task in achieving (in conjunction with other organs of the State and diverse organs of civil society) social redistributive justice. The primary purpose of the Constitution is to intervene in unjust, uneven and impermissible power and resource distribution, in order to restore substantive equality, such as is permissible or tolerable in a country that has committed to foundational values such as are to be found in our constitution. Enduring obstacle If there is a Court that seems unwilling to support the transformative and progressive culture that took place in Kenya 2010, it is the Court of Appeal. The Court has been reluctant in embracing the new agenda that ought to transform the Kenyan state along political, social, economic and egalitarian lines. Karl Klare in his widely-quoted discourse, ‘Transformative culture and transformative Constitutionalism’ extrapolates the argument that for a constitution to engender transformative aspirations, it must contain certain facets. This entails a substantive(redistributive) concept of equality, engendered positive state duties to combat poverty and inequality as well as promote social welfare, provision for both vertical and horizontal application of the Constitution in general and the Bill of Rights in particular, engendered participatory governance, multi-culturalism, historical self-consciousness, socio-economic rights as well as an envisioned transformative adjudication – i.e. the creation of new role and responsibilities for the Judiciary through transformation of adjudicative processes and methods. Klare’s witty postulation is not a lone voice in the wilderness. Nichorus W. Orago as well affirms two objectives that culminated the idea of constitutional reforms. First, the reforms were intended to transform the political governance structures from authoritarianism to a culture of democratic decision-making- where all exercise of public power was justifiable. Secondly, reforms were aimed at transforming the economic and social structures that entrenched endemic poverty and pervasive inequality, into an egalitarian and caring society. The idea that should prick the collective conscience of Kenyan legal scholars is that achieving the implementation of transformative culture as underpinned in the new dispensation requires a rethink of approaches of interpreting the law as was envisioned by Emeritus Chief Justice Willy Mutunga in his lecture delivered at Fort Hare University South Africa titled, ‘The 2010 Constitution of Kenya and its Interpretation: Reflections from the Supreme. Chief Justice Mutunga noted thus: Our progressive and transformative Constitution, if implemented, would put Kenya in a social democratic trajectory, under a human rights state, signalling equitable distribution of resources, sustainable development and prosperity. The Court of Appeal actually misses this novel idea! To appreciate the extent to which the Court of Appeal is accused of killing the jurisprudence emerging from socio-economic rights, we need to examine some cases rendered by the same Court in Post-2010 era. If we may revisit Mitu-Bell (supra) The case was an appeal that was first filed at the Constitutional division of the High Court by Mitu-Bell (1st respondent) on behalf of its members, and resident of a slum dwelling known as ‘Mitumba village’ after its members were illegally and forcefully evicted by Kenya Police officers at the behest of the Kenya Airport Authority. When the case was presented before Justice Mumbi Ngugi, the Judge sought inspiration from Paragraphs 15 and 16 of the guidelines on evictions in UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 7: The right to adequate housing. This, she argued, was made possible by virtue of Articles 2(5) and 6 of the Constitution of Kenya, which incorporated general rules of international law, and any treaty or convention that Kenya has ratified into its law. The judge, after analysing the facts of the case was of the considered opinion that the forced eviction and demolition of the petitioners’ home without provision of reasonable resettlement – and given that the eviction did not follow due process – violated petitioners/applicants constitutional rights. Further, the judge opined that the selective demolition of the informal settlement alone and not the multi-storied buildings surrounding it violated the right to non-discrimination and equal protection of the law. She then issued an order that the respondents, within 60 days, provide shelter and access to housing for the former residents of Mitumba village. When the Mitu-Bell case landed at the Court of Appeal, Justices Erastus Githinji, Wanjiru Karanja and James Otieno-Odek exhibited open bias from the onset, even quoting Constitutional provisions selectively. Further they reversed and rubbished the rich theory of the law developed by the High Court. To cap it all, they disallowed the application of international law and supervision of judicial decisions. The Court, at Paragraph 116, attempted to distinguish between general rules of international law and rules of international law, stating: It must be noted that Article 2(5) of the Constitution makes general rules of international law to be part of the laws of Kenya. It is the general rules that form part of the laws of Kenya, and not all rules of international law. In this context, rules of international law are not part of the laws of Kenya unless they are part of the general rules of international law. The general rules of international law are those rules that are peremptory principles and are norms of international law; they are the customary rules of international law or jus cogens in international law; they are those rules from which no derogation is permitted; they are globally accepted standards of behaviour; they are rules and principles that are applicable to a large number of states on the basis of either customary international law or multilateral treaties; the general rules of international law are not based on the consent of the State but are obligatory upon state and non-state actors on the basis of customary international law and peremptory norms(jus cogens). After scattering this rich tradition of international law, the judges then delivered their last blow on the implementation of social and economic rights: they rejected suggestions for supervision of orders which was meant to ensure effective enforcement the rights to housing. The judges’ lofty intention was to terminate the argument under the notion of “appropriate” remedy for social rights as it was rendered by Mumbi Ngugi – it allows a court to award an “effective” remedy. Through this judgment, the Appeal Court displayed an amazing lack of self-awareness, nay, and ignorance of the Culture of interpreting the post-2010 jurisprudence. Even more worrying is that it is a decision which negates the philosophy behind incorporation of Article 43 to the Constitution. The Constitutional Court of South Africa in Fose v Minister of Safety and Security correctly defined what “appropriate remedy means. It stated that ‘appropriate remedy mean an effective remedy.” The Court further observed that “Courts have particular responsibility to ‘forge new tools’ and shape innovative remedies. The Court of Appeal manifested serious ignorance in its failure to appreciate the Constitution’s call for application of “structural interdicts”. The Court also failed to cater for the implications of Article 20(3) (a), which calls on courts to “develop the law to the extent that it does not give effect to a right or fundamental freedom” and also sub-paragraph (b), which calls upon courts “to adopt an interpretation that most favours the enforcement of a right or fundamental freedom. That the High Court is vested with special powers to “hear and determine” matters relating to redress for violations of fundamental rights means that a court must fashion a remedy that is fit to adjudicate the matter before it. The Court of Appeal failed in this regard. In ‘Moi University v Council of Legal Education& another’, a structural interdicts was defined by the High Court to mean a concept to enable a court to supervise the rectification of a breach of fundamental rights, and thus inhibits abdication of responsibility by a party to a suit. Fundamentally, in ‘Crafting Remedies for violations of Economic, Social and Cultural Rights’ Kent Rent states that structural interdicts are a kind of injunction that requires the government to report back to the court at ordered intervals about steps taken to ensure compliance with the Constitution. Both the Kenyan High Court and Supreme Court have travelled the path demanded by South African Constitutional Court by forging new remedies. This can be affirmed by the decisions in ‘Satrose Ayuma & 11 others v The Registered Trustees of the Kenya Railways Staff Retirement Pension Scheme &2 Others’, and in ‘Communications Commission in Kenya &5 Others v Royal Media services Limited and 5 Others’ respectively. The refusal by the Court of Appeal to grant structural interdicts as provided for in the Constitution negates the very steps taken to promote dynamic constitutional dialogue between the judiciary, other constitutional actors and society general. Kilonzo Muuo argues that declarations by the Court on structural interdict for unknown remedies in Kenya erodes what Iain Currie & Johan de Waal, in ‘Remedies in the Bill of Rights’ deem debatable remedies for socio-economic rights violations. Conclusion Cass Sustein’s ‘Designing Democracy: What Constitutions Do” deems ‘Necessity’ offers some guidance here. Out of necessity and desires, Kenya’s Constitution endeavours to place the country on a proper trajectory of transformation founded in its political, social and economic domains along egalitarian democratic lines. Importantly, the Kenyan Court of Appeal cannot be trusted to be the custodian of the transformative project on matters related to socio-economic adjudication and enforcement. The Court seems to be the only judicial organ that cannot understand the terrains on which 2010 Constitution operate. Its failure to embrace the transformative adjudication is a reflection by what Dennis Davis in’ Elegy to Transformative Constitutionalism’ pointed as “judicial mind-set, legal culture or legal consciousness”. The new dispensation demands a judiciary with a passionate and activist attitude in protecting the Constitution and the Bill of Rights. The Appeal Court cannot be! It should be recalled the context on which the Court handles the socio-economic rights raises doubt about the Kenyan legal culture, and underscores its need to be redeemed from shooting down the very agenda that heralds the new order. The infamous Mitu-Bell decision will forever haunt the legal culture of reasoning of Appeal judges. In clear terms, there is need to adopt ongoing transnational-judicial dialogue from other jurisdictions as pioneered by South Africa, Canada, Columbia and India. Kenya’s Court of Appeal must redeploy its mind to the revolutionary path undertaken already by High and Supreme Courts, which in an admirable way have crafted an impressive body of jurisprudence tailored to Kenya’s specific circumstances and ideals. All organs of the State are enjoined to perform their functions in a manner demanded by the Constitution, and the Judiciary must commit itself with unfailing fidelity to be a leading missionary in ensuring the solid foundation blocks for a just, egalitarian society is erected.